On Monday, 11 March 2019, the Jerusalem District Court heard Human Rights Watch (HRW) Director of Israel and Palestine Office, Mr. Omar Shakir, present his oral arguments, challenging the State of Israel’s formal response in support of the Ministry of the Interior’s decision to revoke Mr. Shakir’s work permit. In May 2018, the Israeli Ministry of Interior informed Mr. Shakir that his visa and work permit, issued in April 2017, were being cancelled and that he had 14 days to leave the country.[1]

In October 2017, the Israeli Minister of Interior had taken an unprecedented step to review Mr. Shakir’s work permit less than six months into the permit’s validity period. The review was spurred not by any information gathered by Israeli authorities, but following a lawsuit filed by the Tel Aviv-based Shurat HaDin.[2] The decision was based on an alleged violation of Amendment No. 28 of the Entry into Israel Law, which prohibits the grant of a permit for entry to, and residence in Israel, to any person who has knowingly published a public call to engage in a boycott against the State of Israel or has made a commitment to participate in such a boycott. Mr. Shakir and Human Rights Watch challenged this law and the deportation order in the Jerusalem District Court, which issued a temporary injunction, allowing Mr. Shakir to stay in the country while his case is litigated.

Al-Haq notes that earlier in 2018, the Israeli Foreign Ministry wrote an Opinion about Omar Shakir’s case which was objecting the deportation. HRW did not have access to this opinion, as the Judge refused to provide them with a copy of it. On 11 March 2019, the Judge asked the State Attorney to summarize its content, which provides that according to the State, the Foreign Ministry Affairs no longer objects to the deportation.

What Constitutes ‘Active, Continuous and Consistent’ Calls to Boycott?

At the heart of the current court challenge is the Israeli government’s interpretation of what amounts to an “active, continuous and consistent” call for a boycott, as prohibited by Amendment No. 28 of the Entry into Israel Law. During the first hearing in June 2018, HRW’s attorney Michael Sfard, argued that Mr. Shakir was not recently involved in “active, continuous and consistent” calls for a boycott as set out in the Entry into Israel Law, and that his work as Director of HRW was to prevent the furtherance of specific human rights violations, regardless of the location of, or perpetrator of the violation. Mr. Sfard also pointed out the broader consequences of the government’s overly broad interpretation of what activities are captured by Amendment No. 28, which ultimately may result in a chilling effect on non-governmental organisations (NGOs) advocating for changes to Israeli policy and more broadly foreign citizens critical of Israel policy.[3] In July 2018, the Jerusalem District Court asked the State to present a formal reply to Mr. Shakir’s lawsuit by October.

In the meantime, the Israeli Supreme Court issued a landmark ruling, in Lara Alqasem v Ministry of the Interior[4] on the meaning of an “active, continuous and consistent” boycott under Amendment No. 28 of the Entry into Israel Law. Importantly, the Supreme Court considered that the prohibition of entrance and permits more narrowly applies to people engaged into boycott activities “in the present tense (…) only if the person applying for a visa or permit acts for a boycott supporting organization at the time the application is made”.[5] The Court also underscored the objective of the Entry into Israel Law, which:

“contain no element of punitive or retaliatory action for improper past activities, rather, they support denying entry when such denial has value in terms of safeguarding sovereignty or maintaining public order (…) It cannot justify purely punitive action against parties that no longer engage in such activity or bolster it.”[6]

Finally, the Court found that the denial of entry must only apply to people “engaged in substantive, consistent and continuous action to promote boycotts as part of prominent delegitimization organizations, or independently”.[7]Accordingly, a list of so-called ‘Boycott Organizations’ has been drafted by the Israeli Ministry for Strategic Affairs and Public Advocacy, on which notably, Human Rights Watch does not appear.

State of Israel Equates Human Rights Work with Boycott

In a worrying development, the State of Israel has characterised the human rights monitoring and advocacy work of distinguished and internationally reputable human rights organisation, Human Rights Watch, as a boycott activity. On 10 January 2019, the State of Israel submitted its formal reply to the Jerusalem District Court on Mr. Shakir’s case in a 120-page document. Here, the State of Israel has attempted to distinguish Mr. Shakir’s case from Ms. Al-Qasem’s, arguing that Mr. Shakir’s work permit revocation relates to his present activities as Director of HRW, rather than his past affiliations during his college years, maintaining that “while the Petitioner’s actions allegedly takes place as part of the work of HRW, he does share calls for boycotts made by HRW from his private account, and adds personal statements. Clearly, he could choose not to do so”.[8]

In particular, the State referred inter alia to recent HRW reports on Airbnb and Booking.com.[9] In addition, the State recalled Mr. Shakir’s activities and statements as a student at Stanford University, prior to his current position:

“The Petitioner was extremely active, as a student in promoting BDS against Israel. He was the ‘co-president’ of Students for Palestinian Equal Rights at Stanford University (…) We note that, per the list of organizations (…) ‘Students for Justice in Palestine,’ at the national level (NSJP) is one of the organizations included in the list. According to this document, this is the leading BDS and delegitimization organization on US campuses.” [10]

Israel’s Silencing of NGOs and Shrinking Space

Israel’s categorisation of typical NGO work, including monitoring, documentation, advocacy, and reporting of State’s compliance with their human rights obligations under international human rights and humanitarian law, represents a reprehensible attempt to silence NGO’s role as independent and neutral and impartial actors. As Director of HRW (Israel and Palestine), Mr. Shakir followed his NGO’s policies by working on and disseminating relevant information concerning HRW and other NGO’s work, including on a social media, in line with his professional duties. The revocation of Mr. Shakir’s work permit and Israel’s rhetoric surrounding it are reflective of Israel’s broader discourse on and policy towards institutions, organizations, and individuals that call attention to Palestinian rights and Israel’s violations of international law in the Occupied Palestinian Territory.[11]

Following March 11th hearing, a decision of the Jerusalem District Court is expected in the coming weeks.

[2] Shurat HaDin is a Tel-Aviv based organization that claims to “…protect the State of Israel. By defending against lawfare suits, fighting academic and economic boycotts, and challenging those who seek to delegitimize the Jewish State… Shurat HaDin works with Western intelligence agencies, law enforcement branches and a network of volunteer lawyers…” See https://israellawcenter.org/about-us/

[4] [2018] LAA 7216 (HCJ).“They clarify that the authority established in section 2 (d) of the Entry Law Will be applied only to activists of organizations that support “actively, consistently and continuously support” boycotts against Israel or “independent” activists prominently engaged in activities to promote boycott over a long period of time who meet one of the following criteria - “occupy senior or significant positions in organizations... key activists - persons engaged in substantive, consistent and continuous action to promote boycotts as part of prominent de-legitimization organizations, or independently... Institutional officials (such as mayors) who actively and continuously promote boycotts... “Parties operating on behalf of [a de-legitimization organization]”

“Past activity no longer pursued at the time the application is made is not covered by the section. To clarify, the ‘present tense’ requirement must be applied logically and reasonably. If the overall circumstances indicate that the visa applicant had ceased their activities in the boycott supporting organization or body shortly before the application was made (even if the time frame is several months), and if it is clear that this cessation is artificial or merely an appearance, the person should still be regarded is falling within the terms of the section. This is particularly the case if the circumstances of the matter indicate the cessation of activity was undertaken in order to “circumvent” the provisions of Section 2(d). However, as a rule, a person who has not themselves issued a public call to boycott and, at the time the visa or permit application is submitted, is not acting for an organization or a body that had issued such a call - even if they had acted as such in the past - does fall within the terms of the section”